Plessy Vs. Lochner: The Berea College Case

31 Pages Posted: 15 Mar 2000 Last revised: 28 Nov 2011

See all articles by David E Bernstein

David E Bernstein

George Mason University - Antonin Scalia Law School

Date Written: January 1, 2000


Because Plessy v. Ferguson and Lochner v. New York were decided within a decade of each other, and are two of the most maligned Supreme Court opinions of all time, legal scholars and historians have naturally been inclined to try to find commonalities between the two opinions. The history of the Berea College v. Kentucky case shows that this anachronistic approach is misguided. Plessy and Lochner were not cut from the same cloth; in the late 19th and early 20th centuries, the statism and racism of Plessy went hand in hand, while the skepticism of state power reflected in Lochner was a weapon in the battle against state-sponsored segregation. In 1908, just three years after the Court decided Lochner, the battle between the ideologies reflected in Plessy and Lochner reached the Supreme Court in Berea College. The Court chose to evade the conflict. Compared to Plessy's blunt endorsement of racism and state-sponsored segregation, that evasion, while hardly courageous, reflected a change in attitude toward the constitutionality of state-enforced segregation in the private sector that would come to full fruition less than a decade later in Buchanan v. Warley, in which the Supreme Court invalidated a residential segregation law.

JEL Classification: K20

Suggested Citation

Bernstein, David Eliot, Plessy Vs. Lochner: The Berea College Case (January 1, 2000). George Mason Law & Economics Working Paper No. 00-13, Available at SSRN: or

David Eliot Bernstein (Contact Author)

George Mason University - Antonin Scalia Law School ( email )

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